ETTIYAR AHMED KUTTY Vs. VAYALILAKATH AYITHRAMAN KUTTY

JUDGEMENT

(1.) This second appeal is against the decree of the learned Subordinate Judge of South Malabar dismissing the plaintiff's suit which is a representative action filed on behalf of the Mussalmans of Feroke for an injunction directing the first defendant to demolish and remove the structure put tip in the plot which is claimed to be an adjunct of the Jemath mosque at Feroke, for possession of the same by the plaintiffs on behalf of the mosques and the Mussalman public of Feroke and for granting all other reliefs to the plaintiffs for and on behalf of the mosque which the Court may deem fit to grant. The ground of the claim is that the Jemath mosque belongs in common to the Feroke Mussalman public, that the dead bodies are buried in the Paramba of the mosque and that the plaintiffs congregate, at the said mosque for worship. The necessity for the institution of this suit is alleged to be a trespass by the defendant in that he has put up a shed and has been attempting to build a stone structure besides opening a tea-shop therein. It is stated in the plaint, that the karnavans or elders have been managing the affairs of the mosque, but it is not stated who the karnavans are. The first defendant alleges that the suit property does not belong to the mosque and it is not trust property. He further set up a title to the suit property in the twenty-sixth defendant as muthavalli and denied the title of the plaintiffs to sue as it was the muthavalli alone that could maintain such a suit. The twenty-sixth defendant was impleaded as a party defendant to the suit. While supporting the first defendant in the contention that he is the muthavalli of the mosque and that the affairs of the mosque are under his control, the twenty-sixth defendant in his written statement alleges that the suit property does not belong to the mosque, that the mosque had no right over it, at any time, and that it is not useful in any way for the mosque. He also contended that the Mussalmans who assemble in the Jemath mosque are not, entitled to recover the suit property. The points in controversy that arose on the pleadings were whether the suit property is trust property belonging to the mosque or private property as asserted by the defendants and whether the plaintiffs are competent to sue for all or any of the reliefs claimed in the plaint. The learned District Munsiff who tried the suit, came to the conclusion that the property is trust property attached to the mosque, that the first defendant was a trespasser, and that the plaintiffs 2, 4, 5, 6 and 8 were the elders who were in management of the affairs of the mosque without their being appointed as such by anybody. He however thought that a mandatory injunction was not necessary and he therefore gave a decree for possession on behalf of the general public of Feroke by directing the first defendant to remove the basement on the plot which he erected in contemplation of the stone structure intended to be put up by him. The learned Subordinate Judge dismissed the plaintiffs suit on the ground that the plaintiffs as worshippers of the mosque cannot maintain the suit for possession of the mosque property.

(2.) It is contended in this second appeal by Mr. Sitarama Rao on behalf of the plaintiffs that the view of the learned Subordinate Judge was wrong and that even assuming they are not competent to maintain the suit for possession on the allegations in the plaint the learned Subordinate Judge was not warranted in dismissing the suit. I may at once state that the learned Judge did not go into the question whether the property was trust property or not, whether there was any muthavalli for the mosque or whether there were any accredited managers for the institution who were in management de facto of the mosque property because in the view he took he considered it unnecessary to go into those questions. The principles which regulate the right of suit by a worshipper in relation to trust property are now well settled. Where there is a lawful trustee for an institution, he is the person competent to institute a suit in relation to the property of the institution, to take the necessary steps for safeguarding and preserving it and to eject a trespasser and recover possession thereof for the trust; but the recovery of the property is only for and on behalf of the institution which he represents. But where a trustee has alienated the trust property and therefore would not proceed to recover possession of the same or has disabled himself otherwise from maintaining a suit in respect thereof or declines to institute a suit, it cannot be said that the institution is without a remedy. The worshippers, who are the beneficiaries entitled to participate in the benefits of the institution, are entitled to maintain a suit for preserving the trust property or restoring the property to the trust either by instituting a suit for declaration or for an injunction or even for possession; but whether the worshippers are entitled to claim all or any of the reliefs which a trustee is entitled to do in a properly framed suit would depend on the circumstances of each case. It is desirable and necessary to make the trustee a party to the suit and where he is made a party, it is open to the Court to mould the relief as the circumstances may require. If the suit is one brought for possession by the worshippers, the Court can, after declaring the property to be trust property and setting aside the alienation, direct delivery of possession to the trustee. In cases where there is no trustee, it is open to the Court to direct delivery of possession to the worshippers on behalf of the trust. (Vide Rangaswami Naidu V/s. Krishnaswami Aiyar (1922) 44 M.L.J. 116.) Again, in certain circumstances it is competent to the worshippers to maintain an action for a declaration that a certain property is trust property and for an injunction restraining the defendant from interfering with their right of worship, which is a personal right without making the trustee a party to the suit. This would not offend the principle that a trustee alone is competent to maintain a suit to eject a trespasser--vide Kuvarbai V/s. Mir Alam Khan (1883) I.L.R. 7 Bom. 170 where a relief of injunction was given to worshippers in a caste temple. Applying these principles the question in this case is, is the present suit by the plaintiffs for all or any of the reliefs claimed by them maintainable? The title to the suit property is in dispute. A declaration therefore whether the property is trust property is absolutely necessary before the plaintiffs can get any other relief by way of an injunction or for possession, and the plaintiffs are entitled to claim that relief and the suit involves the granting of that relief. If the property is declared to be the trust property, the next question that arises is, whether the defendant is a trespasser and if he is, he has to be ejected from the trust property in order to safeguard the interests of the trust. Therefore that relief also the plaintiffs can claim. The fact that by reason of the institution having a trustee a Court might refuse to grant delivery of actual possession to a worshipper would not take away his right to maintain a suit for ejectment of a trespasser of trust property, where the circumstances would entitle a worshipper to claim that relief. The right of a worshipper to maintain a suit in ejectment ought not to be confused with the relief of actual possession which the Court may or may not give him. (Vide Srinivasacharlu V/s. Subuddhi (1888) 23 M.L.J. 348.) That it is competent to a worshipper to maintain a suit in ejectment is too well established, though I have stated that the form in which the appropriate relief should be moulded, would depend upon the circumstances of the case. In Zafaryab Ali V/s. Bakhtawar Singh (1883) I.L.R. 5 All. 497 a relief by way of an injunction for removal of a building was granted in respect of a mosque property. In Muhammad Alam V/s. Akbar Husain (1910) I.L.R. 32 All. 631 the learned Judges cite with approval Zafaryab Alt V/s. Bakhtawar Singh (1883) I.L.R. 5 All. 497 and also a passage in Ameer Ali in his work on Muhammadan Law where the learned author observes: Every Muhammadan who derives any benefit from a wakf or trust is entitled to maintain an action against the muthavalli to establish his rights thereto or against a trespasser to recover any portion of the wakf property which has been misappropriated.

(3.) In Maulavi Muhammad Fahimul Huq V/s. Jagat Ballav Ghosh (1922) I.L.R. 2 Pat. 391 Mullick, J., observes thus: It is now settled that a beneficiary of a trust in respect of a Muham-madan wakf interested in the maintenance of a mosque or other charitable institution may, without having recourse to the provisions of Rule 8, Order 1, Civil Procedure Code, and without other beneficiaries, sue for recovery of possession of property wrongfully alienated by the trustee and for the incidental declaration that the properties are the subject of the trust and that they cannot be alienated.